Compensation – Calculation of award – Employee being unfairly dismissed

Bates v Cumbria County Council and another

The employee was employed by the first employer local authority as a teacher at the second employer school. In April 2009, he was dismissed for misconduct. He commenced proceedings against the employers in the employment tribunal and was found to have been unfairly dismissed. He was awarded a total of £70,925 (the award), which included a substantial sum in respect of pension loss. Following the remedy hearing in the tribunal, the employee was convicted of assaulting a 16 year-old former pupil in July 2010. The employers applied for a review of the tribunal’s decision on remedy on the basis that the employee would have been dismissed following his conviction for assault.

At the review hearing, the tribunal revoked the element of the award in respect of pension loss. However, at a further hearing, the tribunal reinstated the original remedy judgment in respect of pension loss, holding that in the light of the decision in Soros v Davison [1994] IRLR 264 (Soros) it was not appropriate to take post-termination conduct into account. The employers appealed.

The employers submitted, inter alia, that the tribunal had erred in: (i) applying the decision in Soros to the present case; (ii) refusing to look at the witness statement of the employers’ witness M and to allow the employers to make submissions by reference to it; and (iii) to have any proper regard to the employee’s evidence when finding that there was no witness evidence in support of the employers’ contention that the employee would have been dismissed before his 65th birthday.

The appeal would be allowed.

On the facts, the employee’s conviction for assault and sentence of a term of imprisonment might have substantially reduced his pension loss and a tribunal determining the proper compensatory award in the case would plainly have been entitled to take into account that evidence. The employers had been entitled to refer to M’s witness statement and the tribunal had unfairly refused to look at it. Accordingly, the employers were unfairly prevented from making any effective submissions in relation to M’s witness statement. There had been no justification for the tribunal adopting such an approach. The tribunal made no reference to the employee’s evidence when assessing the employers’ contention that the employee’s employment would have ended before he reached 65. The tribunal had incorrectly suggested that there had been no evidence to support the employers’ submissions in that regard (see [20], [24], [27] of the judgment).

The issue of pension loss had to be remitted to a freshly constituted tribunal to be determined (see [42], [43] of the judgment).

Soros v Davison [1994] IRLR 264 distinguished; Devis (W) & Sons Ltd v Atkins [1977] 3 All ER 40 considered; Polkey v A E Dauton (or Dayton) Services Ltd [1987] 3 All ER 974 considered; Andrews v Software 2000 Ltd [2007] IRLR 568 considered.

Louise Quigley (instructed by Shoosmiths LLP, Manchester) for the employee; Rad Kohanzad (instructed by Cumbria County Council) for the employers.